Alvarez, Part II.F: Providing for Intermediate Scrutiny of Restrictions on Knowing Falsehoods

One other possible approach is to view knowing falsehoods as “low-value” speech, so that restrictions on the speech are judged under intermediate scrutiny rather than strict scrutiny. Commercial speech, for instance, is generally treated this way.

But such an approach is unlikely to yield results materially different from what the “no-value speech” approach described in Part II.E would yield, at least so long as restrictions such as those described in Part I remain generally upheld. Restrictions on fraudulent statements that seek to get money or votes would likely be justified on the theory that the restrictions are sufficiently “narrowly tailored” to the “substantial government interest” in protecting listeners against getting deceived. But the same interest would be applicable with regard to nearly all knowing falsehoods.

Consider the Stolen Valor Act itself. As we noted in Part II.C, people who lie about decorations generally do so for a reason: They may want to get elected to public office, to get more credibility for their own statements in another’s election campaign, to get more credibility in some nonelectoral political debate, or even just to get more respect from neighbors, acquaintances, potential business associates, or potential romantic partners.

They are thus trying to manipulate listeners’ behavior through falsehood, and their statements are quite likely to indeed affect listeners’ behavior, particularly since having a military decoration is often seen as an especially important mark of merit. Just as trying to affect a federal employee’s behavior through falsehoods creates a significant harm, see 18 U.S.C. § 1001, so trying to affect private citizens’ behavior through falsehoods creates a significant harm — sometimes less significant, sometimes more significant, but significant nonetheless, because it involves manipulating people through deception. And if there is a substantial government interest in protecting people from being deceived into giving $50 to a charitable fundraiser, there is likewise a substantial government interest in protecting people from being deceived into giving others votes, respect, or attention.

We are not persuaded by the government’s argument that the Stolen Valor Act can be justified by a compelling government interest in “conveying gratitude and recognition and fostering morale within the armed forces,” Petitioner’s Brief at 41. We share the Ninth Circuit’s doubt that citizens lose respect for military decorations simply because some people falsely claim to have won such decorations. United States v. Alvarez, 617 F.3d 1198, 1217 (9th Cir. 2010). If the Stolen Valor Act is struck down, military medals will still maintain their power to express our nation’s gratitude to true heroes, and to foster morale within the military.

Rather, a more certain and concrete harm of knowing falsehoods about military honors is the harm to listeners who are defrauded by such falsehoods — a harm that can often be greater than the harm from knowing falsehoods aimed at getting political contributions, and that is especially great precisely because military honors are so respected and valued. The interest in preventing this harm, like the interest in preventing harms stemming from other forms of fraud, would adequately justify the Stolen Valor Act even under intermediate scrutiny. And the interest would likewise justify nearly any restriction on knowing falsehoods.

At the same time, focusing chiefly on intermediate scrutiny might distract from the important task identified in Part II.E — identifying when certain restrictions on false statements are unconstitutional because they unduly chill true statements. Consider, for instance, this Court’s conclusion that false statements often cannot be restricted unless they are made with “actual malice.” Such a result could not have been reached under intermediate scrutiny: A strict liability regime in libel cases, for example, could easily be defended as “narrowly tailored” to a substantial government interest in protecting reputation, or to a substantial government interest in protecting listeners against being misled. After all, such a strict liability regime would advance those interests more than an “actual malice” requirement would, and would thus “promote[] a substantial government interest that would be achieved less effectively absent the [regime].” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985) (describing the requirements of narrow tailoring under intermediate scrutiny); Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 476-78 (1989) (adopting a similar standard under intermediate scrutiny for commercial speech). Likewise, even prohibitions on seditious libel, rejected by this Court in New York Times Co. v. Sullivan, might pass intermediate scrutiny, because they could well be seen as narrowly tailored to the substantial government interest in preventing citizens from being intentionally defrauded.

What is doing the work in this Court’s decisions that impose mens rea requirements in false statement cases, and in this Court’s rejection of seditious libel, is not any analysis of whether the restriction is necessary to serve a sufficiently important government interest under intermediate scrutiny or even strict scrutiny. Rather, it is a judgment about the degree to which the restrictions chill valuable speech — a judgment that is best exercised in defining the scope of the exception, rather than in applying intermediate or strict scrutiny.